A European Experiment In Protecting Cultural Rights

Human Rights Dialogue: "Cultural Rights" (Spring 2005)

Over the past fifteen years a fascinating if flawed experiment has taken place
in Europe regarding the codification of cultural and minority rights. As
communism collapsed in Eastern Europe in 1989 several ethnic conflicts broke
out, and people feared that ethnic violence would spiral out of control. In
response, Western democracies decided to "internationalize" the treatment of
national minorities in post-communist Europe, creating a pan-European regime to
monitor their treatment in accordance with European standards. Some of these
standards were formulated by the High
Commissioner on National Minorities of the Organization for Security and Co-operation in
Europe (OSCE)—a position established in 1993. Others were formulated by the
Council of Europe in its 1995 Framework
Convention for the Protection of National Minorities. Compliance with these
OSCE and Council of Europe standards became a requirement for a country to "join
the West," and in particular to join the European Union.

This was a novel idea—the first time that the Western democracies
collectively asserted that respect for minority rights was a prerequisite for
membership in the family of liberal democracies. It has also been a
controversial idea. While there has been broad support for the general principle
that post-communist countries should meet minimum standards of minority rights,
there has been far less agreement about what precisely these standards should
be. Western countries differ significantly in terms of which rights they accord
to which minorities, or even which groups they recognize as "minorities." Trying
to find a common framework for articulating pan-European standards has not been
easy.

As a starting point, European organizations looked to Article 27 of the International Covenant on
Civil and Political Rights (ICCPR), adopted in 1966, which for many years
was the only example in international law of a minority rights norm. While this
article provided a starting point, it was widely viewed as insufficient for two
reasons. First, the right to "enjoy one’s culture" as originally formulated
included only negative rights of non-interference, in effect simply reaffirming
that members of minorities must be free to exercise their standard rights of
freedom of speech, association, assembly, and conscience. These minimal
guarantees, while vital, were inadequate to address the issues underlying
violent ethnic conflicts in post-communist Europe. These conflicts centered on
various positive claims, such as the right to use a minority language in courts
or local administration; the funding of minority schools, universities, and
media; the extent of local or regional autonomy; the guaranteeing of political
representation for minorities; or the prohibition on settlement policies
designed to swamp minorities in their historic homelands with settlers from the
dominant group. Article 27 has nothing to say about such claims. If European
standards were to be useful in resolving such conflicts, they would have to
address claims for positive minority rights.

Article 27 has a second limitation in that it applies to all types of
ethnocultural minorities, no matter how large or small, recent or historic,
territorially concentrated or dispersed. Indeed, the UN Human Rights Committee
has declared that Article 27 applies even to visitors within a country! Article
27, in other words, articulates a truly universal cultural right—a right
that can be claimed by all individuals and carried with them as they move around
the world.

This commitment to identifying universal cultural rights limits the sorts of
minority rights that can be recognized in international law. In particular, it
precludes claims that flow from facts of historic settlement or territorial
concentration. Since Article 27 articulates a universal and portable cultural
right that applies to all individuals, even migrants and visitors, it does not
articulate rights that are tied to the fact that a group is living on what it
views as its historic homeland. Yet it is precisely claims relating to residence
on a historic homeland that have been at stake in all of the violent ethnic
conflicts in post-communist Europe, (e.g., in Bosnia, Kosovo, Macedonia,
Georgia, Chechnya, Nagorno-Karabakh). Indeed, homeland claims are at the heart
of most violent ethnic conflicts in the West as well (e.g., the Basque
provinces, Cyprus, Corsica, Northern Ireland). In all of these cases, minorities
claim the right to govern themselves in what they view as their historic
homeland, including the right to use their language in public institutions
within their traditional territory, and to have their language, history, and
culture celebrated in the public sphere (e.g., in the naming of streets, the
choice of holidays and state symbols). None of these claims can plausibly be
seen as universal or portable; they only apply to particular sorts of minorities
with a particular sort of history and territory. In short, these are all cases
of ethnonational (or ethnonationalist) conflict, revolving around
competing claims to nationhood and national territory.

To be useful in resolving conflicts in post-communist Europe, European
standards would need to go beyond universal minority rights and articulate
targeted minority rights, focusing on the specific ethnonational groups
involved in these conflicts. Whereas Article 27 lumps together “national,
ethnic, religious and linguistic” minorities, the Council of Europe’s Framework
Convention and the OSCE High Commissioner focus solely on "national minorities."
While there is no universally agreed-upon definition of "national minorities,"
the term usually refers to historically-settled minorities, living on or near
what they view as their national homeland. Most countries have explicitly stated
that immigrant groups are therefore not national minorities.

Unfortunately, having set themselves the courageous and novel task of
defining the rights of national minorities, European organizations then lost
their nerve. The new norms do not in fact address the challenges raised by
national minorities. There is no discussion of how to resolve (often competing)
claims relating to territory and self-government or how to assign official
language status, and there are no guarantees that minorities can pursue
higher-level education or professional accomplishment in their own language.
States can fully respect these standards and yet centralize power in such a way
that all decisions are made in forums controlled by the dominant national group.
They can also organize higher education, professional accreditation, and
political offices so that members of minorities must linguistically assimilate
in order to achieve professional success and political power. In short, these
norms do not address the clash between minority self-government claims and
centralizing state policies that generated the destabilizing ethnic conflicts in
the first place.

In fact, the Council of Europe and OSCE norms are essentially a revised
version of the Article 27 right to enjoy one’s culture, strengthened to include
certain modest positive rights, such as public funding of minority elementary
schools, the right to spell one's surname in accordance with one’s own language,
and the right to submit documents to public authorities in the minority
language. These changes are significant, but they do not address the distinctive
characteristics and aspirations of national minorities—their sense of nationhood
and claims to a national homeland.

This failure to address the more fundamental issues of cultural identity has,
I believe, resulted in an unstable situation. At the moment only national
minorities are currently protected by these European norms, however
inadequately. But since the actual rights being codified are not based on claims
of historic settlement and territorial concentration, there is no reason why
they should not be extended to apply to immigrant groups as well. And indeed
there is currently a movement within both the Council of Europe and the OSCE to
do exactly that—in effect, to move back to the original Article 27 model that
attempts to articulate universal cultural rights applicable to all minorities,
new or old, large or small, dispersed or concentrated.

Many people involved in issues of minority rights assume that redefining the
category of national minorities to include immigrants is a progressive step: The
more groups that are protected, the better. Moreover, immigrants in Europe today
are clearly a vulnerable group in need of international protection. The ideal
solution would be to adopt a declaration focused on distinctive needs of
immigrants, but that seems unlikely. After all, none of the EU states has
ratified the 1990 UN
Convention on the Protection of the Rights of All Migrant Workers, and the
prospects of adopting European-level norms are almost nonexistent. Consequently,
the only realistic way to achieve this protection is by fitting immigrants under
some pre-existing scheme of minority protection, which in the European context
means sliding them under the umbrella of national minorities.

While this extension is progressive in giving protection to groups that would
not otherwise be protected, we must also recognize that it is potentially
regressive in other respects. It amounts to the slow abandonment of the bold
experiment of articulating international norms targeted at the distinctive
historic/territorial claims of national minorities—norms capable of resolving
potentially violent ethnonationalist conflict.

Is there any alternative? One option would be to enshrine a norm of “internal
self-determination,” granting national minorities the right to territorial
autonomy. Such a norm has been included in recent declarations on indigenous
rights (for example, in the U.N.’s
Draft Declaration on the Rights of Indigenous Peoples). Moreover, most
Western democracies have accepted the need for territorial autonomy to
accommodate their national minorities—for example, Catalonia, the Basque
provinces, Scotland, Wales, Flanders, South Tyrol, Aland Islands, Quebec, Puerto
Rico—and this seems to be working well.

However, many European countries were unwilling to accept a principle of
national minority self-government. For many states, particularly in Eastern
Europe, acknowledging the “national” dimension of a minority's identity raises
the spectre of secession or irredentism, and jeopardizes the right of the state
to speak for, and to govern, all of its citizens and territory. As a result, the
few tentative proposals for incorporating a norm of internal
self-determination—including a proposal by the Parliamentary Assembly of the Council of
Europe in 1993—were quickly quashed.

In short, the "right to enjoy one’s own culture" is too weak to address the
issues underlying ethnonational conflicts, and the right to "internal
self-determination" is too strong to be accepted by most states. Is there any
way out of this deadlock? Some commentators have suggested that the right to "effective participation" might provide the key. This idea, which is also part
of OSCE and Council of Europe norms, may provide a basis for addressing the
political dimensions of ethnonational conflicts without embracing the
controversial idea of internal self-determination. The hope is that states and
minorities would be more likely to resolve their competing claims relating to
territory and autonomy if they framed them in the language of effective
participation, rather than nationhood and national self-government. In my view,
this only defers, rather than genuinely addresses, the underlying conflicts, but
it is at the moment the only hope for developing more effective norms. Time will
tell whether it will fare any better.